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2016 Supreme(Del) 1668
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJIV KHANNA AND R.K. GAUBA, JJ.
WASIM HASSAN - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL NO.802/2011, CRIMINAL APPEAL NO.571/2011
Decided on : 6-04-2016
For the Appellant :Mr. M.S. Khan, Advocate.
For the Respondent: Ms. Aashaa Tiwari, APP with HC Kishan Singh, MHCM, PS-New Usman Pur.
The dying declaration, supported by corroborating evidence, can form the basis for conviction in criminal cases.
Headnote:
Burning - Criminal Law - Indian Penal Code, 1860 (IPC) Sections 302, 34, 498A - The judgment discusses the unnatural death of Rehana, the dying declaration, and the evidence presented by the prosecution. The court affirms the conviction of the appellants under Section 302 read with Section 34 IPC and Section 498A read with Section 34 IPC.
Fact of the Case:
The case involves the death of Rehana, wife of Wasim Hassan, due to burn injuries suffered in her matrimonial home. The appellants were convicted under Sections 302 and 498A of the IPC.
Finding of the Court:
The court found that the dying declaration of Rehana, recorded by the Sub Divisional Magistrate, was credible and reliable. The court also considered the evidence presented by the prosecution, including the presence of kerosene oil and matchsticks at the spot, and the testimony of witnesses. The court rejected the appellants' claims of suicide and upheld their conviction.
Issues: The primary issue was the credibility of the dying declaration and whether the evidence presented by the prosecution proved the guilt of the appellants.
Ratio Decidendi: The court relied on the dying declaration, corroborating evidence, and witness testimony to establish the guilt of the appellants. The court also considered the conduct of the appellants and the absence of evidence supporting their claims.
Final Decision: The court affirmed the conviction of the appellants under Sections 302 and 498A of the IPC and dismissed the appeals. The court also issued directions for the surrender of the appellants to undergo the remaining sentence.
SANJIV KHANNA, J.
This common judgment would dispose of these appeals preferred by Wasim Hassan and his mother Amir Jahan impugning judgment dated 7th April, 2011, passed by Additional Sessions Judge-V, Karkardooma Courts in the charge sheet arising out of FIR No.112/2006, police station New Usmanpur convicting them under Sections 302 read with Section 34 of the Indian Penal Code, 1860 (IPC, for short) and Section 498A of the IPC.
2. By the order on sentence dated 8th April, 2011, the two appellants have been sentenced to life imprisonment, fine of Rs.5,000/- each and in default of payment of fine, to undergo simple imprisonment for one year for the offence under Section 302 read with Section 34 IPC and simple imprisonment for three years, fine of Rs.5,000/- each and in default of payment of fine, to undergo simple imprisonment of six months for the offence under Section 498A IPC. Benefit of Section 428 of the Code of Criminal Procedure, 1973 (Cr.P.C.), it is directed, would be given.
3. Unnatural death of Rehana, wife of Wasim Hassan and daughter-in-law of Amir Jahan pursuant to burn injuries suffered in her matrimonial home on the second floor of property at L-1153, Gali No.8, Gautam Vihar, Delhi at about 10 A.M. on 2nd April, 2006, is not under challenge and is proved beyond doubt. Rehana at about 11.20 A.M. on 2nd April, 2006, was taken to the Guru Teg Bahadur Hospital (GTB Hospital) and was admitted there, vide MLC Ex.PW-15/A. Rehana died at about 11.15 P.M. on 4th April, 2006. As per the postmortem report Ex.PW-10/A, she had ante mortem burn injuries all over her body, sparing a small area in front of the abdomen. The cause of death, it was opined, was septicemic shock due to infected flame burns, ante mortem in nature, involving 95% of the body surface. The said postmortem examination was conducted by Dr. Barkha Gupta, Senior Resident, whose handwriting and signatures were identified by Dr. Arvind Kumar (PW-10).
4. The appellants do not also dispute the date of marriage of Rehana with Wasim Hassan. Shabana (PW-1), sister of Rehana has deposed that Rehana had married Wasim on 1st May, 2004. Julekha (PW-2), mother of Rehana in her testimony recorded on 25th August, 2007, has stated that her deceased daughter Rehana had married Wasim about two years prior to her death. The said versions given by the two prosecution witnesses remained uncontroverted and, in fact, both Amir Jahan and Wasim had accepted in their statement under Section 313 Cr.P.C. that Rehana had got married to Wasim on 1st May, 2004.
5. Before we go to the evidence on record, we would notice that the trial court had framed alternative charges under Section 304 B read with Section 34 IPC and Section 302 read with Section 34 IPC, inter alia, recording that Rehana had suffered an unnatural death, otherwise than under normal circumstances within seven years of her marriage. The trial court has convicted the appellants under Section 302 read with Section 34 IPC.
6. The judgment under challenge primarily relies upon the dying declaration of Rehana marked Ex.PW-6/A, which was recorded by L.R. Meena, who on 3rd April, 2006 was posted as the Sub Divisional Magistrate, Seelampur Sub Division. This witness has testified that on 3rd April, 2006 at the request of the SHO, police station New Usmanpur, he at about 3.00-3.30 P.M. had visited the burns ward of the GTB Hospital and had recorded statement of the deceased Rehana marked Ex.PW-6/A, which was attested by him at point X. L.R. Meena (PW-6) had also recorded statement of Shabana (PW-1) and Julekha (PW-2) on the request of the SHO, police station New Usmanpur at about 12 noon on 3rd April, 2006, which were marked Ex.PW-1/A and Ex.PW-2/A, respectively. The statement Ex.PW-6/A subsequently became the fulcrum of the FIR in question, i.e. FIR No.112/2006, police station New Usmanpur. The statement made by Rehana and recorded by L.R. Meena (PW-6), marked Ex.PW-6/A in Hindi, reads as under:-
“Meri shaadi 02.5.04 mein Was
